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Chickening Out? Chlorinated Chicken and Trade

Of all commodities, it is the humble chicken which seems to have caught the public’s imagination when it comes to trade talks. Agriculture has long been a key offensive interest of the US, and it is no secret that it opposes the EU ban on chicken carcasses that have been rinsed with chlorine based chemicals— a ban which has been in place for over 20 years. Beyond instinctive reactions, there are many competing interests, not all of them obvious. From a consumer perspective, a study conducted by the Adam Smith Institute suggests that lifting the ban would lead to almost a 20% drop in chicken prices in British markets. On the other hand, choosing to permit import of chlorine-rinsed chicken into the UK would presumably put pressure on the EU to enforce stringent border checks, post Brexit, of animal and/or agriculture based commodities exported from the UK to the EU, which would not be looked upon favourably by UK farmers.

The EU’s ban on chlorine chicken dates from 1997. It is also the subject matter of a suspended WTO dispute (WT/DS389), commenced but suspended in 2009. The legal basis for the ban is not as clear-cut as it may seem. There is little scientific evidence to suggest that such rinsing is harmful for human health. Indeed, US residents have consumed chicken processed by such means for decades without any proven adverse effects. Interestingly, studies have shown that even European food products sometimes have chlorine contents higher than the prescribed EU limits. However, the EU does not think the debate should stop at human health. Instead, the ban should be seen in the context of its animal welfare policy in line with its “farm to fork” principle (i.e. improving standards at all stages of meat and food processing).

So what could be the position of the EU measure under WTO law? The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the “SPS Agreement”) requires all food safety measures to have a scientific justification, where one exists. The SPS Agreement does provide scope for provisional measures when scientific evidence is lacking – the precautionary principle on which the EU relies. However, the applicability of the precautionary principle to this situation is doubtful given the duration of the ban, and the fact that a number of studies, including one by the international food standards regulator, the Codex Alimentarius Commission, have concluded there is no adverse health impact.

In such a situation, how could the EU’s position be justified? There are two options. First, if the measure is truly targeted at food safety, it is relevant that the Appellate Body has recognized a wide degree of regulatory autonomy under the SPS Agreement. Among other things, ”scientific evidence” can be minority evidence, so long as it qualified as scientific. Also, it is not mandatory to harmonise SPS measures through international standards (EC—Hormones). Perhaps, if the EU can find some scientific evidence to support its ban, it might just scrape over the line.

But it might be more effective to acknowledge that the EU’s ban has nothing to do with food safety but is rather based on animal welfare concerns. If this is the case, then the SPS Agreement will not be relevant. The EU’s ban will fall under the GATT. Importantly, however, unlike the SPS Agreement, the GATT has a ”public morals” exception. In EC—Seal Products, the EU was permitted under this exception to protect seals in Canada (although it lost the case for doing this in a discriminatory manner). The EU might have better luck this time since the morality argument does not require assessing the EU’s conception of “right” or “wrong”, but rather whether the measure is genuine and consistent with the EU’s values, and the EU may have a strong case in this respect. It may also be argued that the absence of sufficiently good reasons for taking a risk relating to health lends itself to the argument that trade in chlorine rinsed chicken would amount to an immoral taking of an unnecessary risk (Gareth Davies, 2007).

Where non-tariff barriers are a concern, drawing the line between protectionism and regulatory autonomy of states to implement policy objectives will always remain tricky. Moreover, if one goes by past experiences, the EU takes its meat regulatory standards very seriously and will not back down even in the face of non-favourable WTO outcomes (after losing the EC—Hormones and EC—Biotech Products cases, the EU reached settlements to keep in place the infringing measures). It seems unlikely any chlorine-rinsed chicken will be entering the EU any time soon. Whether or not that is true for the UK is a separate question.